In his opinion in Brackeen v. Zinke, United States District Judge for the Northern District of Texas, Reed O'Connor, entered summary judgment for the plaintiffs and found that portions of the Indian Child Welfare Act, ICWA are unconstitutional, specifically violating equal protection, the non-delegation doctrine of Article I, and the commandeering principle of the Tenth Amendment. Passed in 1978, the general purpose of ICWA is to prevent Native children from being removed from their families and tribes based on a finding that "an alarmingly high percentage of Indian families [were being] broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies” as Judge O'Connor's opinion acknowledged, quoting Adoptive Couple v. Baby Girl (2013) (quoting 25 U.S.C. § 1901(4)).

Judge Reed O'Connor, however, accepts an argument that was sidestepped by the United States Supreme Court in Baby Girl: that ICWA violates equal protection (applied to the federal government through the Fifth Amendment) by making a racial classification that does not survive strict scrutiny. Recall that in some briefs as well as in the oral argument, the specter of the racial classification was raised. In United States District Judge O'Connor's opinion, that specter is fully embodied. Judge O'Connor found that ICWA does make a racial classification, rejecting the government's view that the classification at issue was a political category. Judge O'Connor reasoned that ICWA defines Indian child not only by membership in an Indian child, but extends its coverage to children "simply eligible for membership who have a biological Indian parent." Thus, Judge O'Connor reasoned, ICWA's definition "uses ancestry as a proxy for race" and therefore must be subject to strict scrutiny. Interestingly, the United States government did not offer any compelling governmental interest or argued that the classification is narrowly tailored to serve that interest. Judge O'Connor nevertheless credited the Tribal Defendants/Intervenors assertion of an interest in maintaining the Indian child's relationship with the tribe, but found that the means chosen was overinclusive, concluding that

The ICWA’s racial classification applies to potential Indian children, including those who will never be members of their ancestral tribe, those who will ultimately be placed with non-tribal family members, and those who will be adopted by members of other tribes.

On the non-delegation claim, Judge Reed O'Connor found it fatal that ICWA allows Tribes to change the child placement preferences selected by Congress and which then must be honored by the states in child custody proceedings.

On the Tenth Amendment claim, Judge Reed O'Connor relied on the Court's recent decision in Murphy v. NCAAholding unconstitutional a federal law prohibiting states from allowing sports gambling regarding anti-commandeering, concluding that

Congress violated all three principles [articulated in Murphy] when it enacted the ICWA. First, the ICWA offends the structure of the Constitution by overstepping the division of federal and state authority over Indian affairs by commanding States to impose federal standards in state created causes of action. See 25 U.S.C. § 1915(a). Second, because the ICWA only applies in custody proceedings arising under state law, it appears to the public as if state courts or legislatures are responsible for federally-mandated standards, meaning “responsibility is blurred.” Third, the ICWA shifts “the costs of regulations to the States” by giving the sole power to enforce a federal policy to the States. Congress is similarly not forced to weigh costs the States incur enforcing the ICWA against the benefits of doing so. In sum, Congress shifts all responsibility to the States, yet “unequivocally dictates” what they must do.

[citations to Murphy omitted].

With more abbreviated analysis, Judge Reed O'Connor found that the applicable regulations pursuant to ICWA violated the Administrative Procedure Act and that Congress did not have power to pass ICWA under the Indian Commerce Clause because it was limited by the Tenth Amendment. However, Judge O'Connor rejected the individual prospective plaintiffs' argument that ICWA violated the Due Process Clause's protection of family rights.

This opinion finding a long-standing statute unconstitutional is sure to be appealed, especially by the Cherokee Nation and other Tribal Intervenors.

The Supreme Court will hear oral arguments tomorrow in Gundy v. United States, the case testing whether Congress violated the separation of powers by delegating too much authority to the Attorney General to determine whether the Sex Offender and Registration and Notification Act applies to pre-Act offenders. Here's my preview for the ABA Preview of United States Supreme Court Cases (with permission):

FACTS

The Sex Offender Registration and Notification Act

In 2006, Congress enacted SORNA to “establish a comprehensive national system for the registration” of sex offenders. Before SORNA, every state had its own registration system, and the federal government required states to adopt certain unifying measures or lose certain federal funds. SORNA strengthened these baselines, but it also did more.

In particular, SORNA created—and required states to create, as a condition of receiving certain federal funds—criminal penalties for individuals who fail to comply with its registration requirements. SORNA created a federal three-tier system for classifying sex offenders based on the significance of their offense, and made it a federal crime to fail to register for a specified number of years (depending on the tier of the crime). (This was different than the classification system that many states previously used, which set requirements based on individualized risk assessments of the offenders.) The Act states that a person who (1) “is required to register under” SORNA; (2) “travels in interstate or foreign commerce”; and (3) “knowingly fails to register or update a registration as required by” SORNA is guilty of a federal crime punishable to up to ten years in prison. 18 U.S.C. § 2250(a). It also requires states (again, as a condition of receiving certain federal funds) to “provide a criminal penalty that includes a maximum term that is greater than 1 year for the failure of a sex offender to comply with” SORNA’s registration requirements.

But Congress didn’t specify whether these new criminal provisions would apply to pre-Act offenders. (The question was important: legislators estimated that there were more than 500,000 pre-Act offenders when Congress passed the law.) Instead, Congress left it to the Attorney General. SORNA says: “The Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before the enactment of this chapter . . . and to prescribe rules for the registration of any such sex offenders . . . .” 34 U.S.C. § 20913(d).

This gives the Attorney General quite a bit of discretion. It allows the Attorney General to apply SORNA to pre-Act offenders immediately, or later, or not at all. It also allows the Attorney General to make a decision at one time, but to change course later, or under any new President, with regard to whether and how SORNA’s registration requirements would apply to pre-Act offenders.

In fact, the Attorney General exercised this discretion, at least to some extent. Attorney General Alberto G. Gonzales issued an interim rule about six months after Congress passed SORNA stating that SORNA would apply to pre-Act offenders. Since then, different Attorneys General issued different guidelines as to how it would apply, particularly with regard to offenders who had been released from prison for longer than SORNA’s maximum registration periods (for example, a person who was released more than 25 years before Congress enacted SORNA, but who would be subject to a maximum 25-year registration period under SORNA). As relevant to this case, Attorney General Eric Holder issued guidance in 2010 that SORNA credit pre-Act offenders with their entire prior period in the community, regardless of what a local jurisdiction might decide.

Gundy’s Conviction

In 2005, Herman Avery Gundy pled guilty in Maryland to sexual assault of a minor. He was sentenced to 20 years in prison, with ten years suspended and five years of probation.

In November 2010, Gundy completed his state sentence and was transferred to the custody of the Federal Bureau of Prisons to serve a related federal sentence. The Bureau of Prisons transferred Gundy from Maryland to a prison in Pennsylvania. In July 2012, it transferred him from Pennsylvania to a halfway house in New York to complete his sentence. Gundy was released on August 27, 2012. He remained in New York.

In October 2012, Gundy was arrested in New York and charged with violating SORNA’s federal criminal provision. The indictment alleged that Gundy (1) was “an individual required to register” under SORNA based on his 2005 Maryland sex offense, (2) traveled in interstate commerce, and (3) “thereafter resided in New York without registering” as required by SORNA.

Gundy moved to dismiss the indictment, arguing, among other things, that SORNA could not constitutionally apply to him, because Congress delegated too much authority to the Attorney General to make a fundamentally legislative decision about whether SORNA applied to pre-Act offenders. The district court initially dismissed the indictment, but later, on remand from the Second Circuit, rejected Gundy’s constitutional argument. The Second Circuit affirmed, and remanded the case for trial. Gundy was convicted, and the district court sentenced him to time served and five years of supervised release. Gundy appealed, again arguing that SORNA could not constitutionally apply to him. The Second Circuit again rejected this argument. This appeal followed.

CASE ANALYSIS

In order to protect Congress’s lawmaking authority within our separation-of-powers system—and to ensure that Congress does not cede this authority to the Executive Branch—the Court has set a standard for congressional delegations: it requires Congress to provide “intelligible principles” whenever it delegates authority to enforce the law to agencies within the Executive Branch. This is called the “Nondelegation Doctrine.”

Historically speaking, the Nondelegation Doctrine has been loose and quite permissive, giving Congress wide berth. Thus, the Court has said that a congressional delegation satisfies the Nondelegation Doctrine “if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of th[e] delegated authority.” American Power & Light Co. v. SEC, 329 U.S. 90 (1946). To date, the Court has found only two statutory delegations that violated the Doctrine, and both of those provided almost no guidance to the Executive.

Still, Gundy contends that SORNA’s delegation to the Attorney General to determine the Act’s application to pre-Act offenders violates the Doctrine. Gundy argues first that SORNA provides no intelligible principles to the Attorney General, because it doesn’t say “whether he should make any pre-Act offenders register; which offenders should be required to register; or even what he must (or must not) consider in deciding these questions.” He says that even the government concedes that SORNA allows the Attorney General to take no action at all, to wait years before taking action, and to reverse course at any time. Gundy claims this unbridled authority “can only be characterized as ‘legislative’ power[]” in violation of the separation of powers.

Gundy argues next that the Court should apply a heightened nondelegation standard in this context, and that SORNA violates the heightened standard, too. In particular, Gundy claims that SORNA delegates “significant power” to the Attorney General “to make policy decisions that bear directly on an individual’s liberty . . . ; disturb settled expectations of law . . . ; and infringe states’ sovereign interests (by regulating purely intrastate conduct and dictating to states, as a condition of federal funding, how they must regulate and criminalize conduct within their own borders).” Gundy contends that these features of SORNA require a heightened nondelegation standard, and that SORNA fails, because “the statute gives the Attorney General no meaningful guidance as to how to exercise these vast powers.”

The government counters that SORNA satisfies the traditional Nondelegation Doctrine. The government says that the Act identifies the official to whom it delegates authority (the Attorney General), and that SORNA’s text and history sufficiently provide a “general policy” that the Attorney General should pursue in making the determination. The government claims that SORNA thus easily satisfies the deferential traditional nondelegation standard.

To illustrate its point, the government contends that SORNA provides the Attorney General the exact same discretion as a hypothetical (and valid) statute that required all pre-Act offenders to register but authorized the Attorney General to grant waivers. Under this hypothetical (and, again, valid) statute, “the scope of [the Attorney General’s] authority . . . would be the same.” The government says that if Congress can enact this hypothetical statute (which it can), then it can also enact SORNA.

The government argues next that the Court need not address Gundy’s argument about a heightened nondelegation standard. The government contends that SORNA does not raise especial concerns that would justify a heightened standard, that the Court has already rejected a heightened standard, and that SORNA would satisfy any standard, anyway.

SIGNIFICANCE

This case addresses a key question left open the last time the Court took on SORNA, in Reynolds v. United States. 565 U.S. 432 (2012). In that case, the Court ruled that pre-Act offenders do not have to register under SORNA until the Attorney General validly specified that the Act’s registration provisions applied to them. In dissent, Justice Antonin Scalia, joined by Justice Ruth Bader Ginsburg, noted that SORNA potentially raised a nondelegation problem:

it is not entirely clear to me that Congress can constitutionally leave it to the Attorney General to decide—with no statutory standard whatever governing his discretion—whether a criminal statute will or will not apply to certain individuals. That seems to me sailing close to the wind with regard to the principle that legislative powers are nondelegable.

This case picks up that cue. That’s notable, because the Nondelegation Doctrine has been all but dormant since 1935. In that year, the Court ruled in Panama Refining Co. v. Ryan, 293 U.S. 388 (1935), and Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935), that two different statutes were unconstitutional. Since then, the Court has not ruled a single act of Congress unconstitutional under the Doctrine. This case could resurrect this long-dormant doctrine.

This could be especially significant in the broader context of a Court that seems increasingly skeptical, even hostile, to aggressive agency rule-making—what some describe as impermissible “lawmaking”—within the Executive Branch. This hostility comes out in the increasingly common arguments from some quarters against judicial deference toward agency rule-making under so-called “Chevron deference.” Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc. 467 U.S. 837 (1984). Chevron deference says that the courts should defer to an agency’s interpretation of a statute, so long as the interpretation is reasonable. Opponents of Chevron deference call for greater judicial scrutiny of agency interpretations, in order to rein them in. (As this piece goes to print, Judge Brett Kavanaugh is fielding questions on this precise topic from Senators on the Judiciary Committee.) Arguments against Chevron deference share this feature with arguments against the deferential Nondelegation Doctrine: They both seek to control an Executive bureaucracy that some see as an unaccountable, lawmaking “fourth branch” of government.

Within this context, the Court’s ruling could contribute to a more general move by the Court to rein-in Executive agency actions. Such a move could shift power away from Executive agencies to Congress.

But on that point, it’s important to remember that in our separation-of-powers system there’s a third independent branch of government, the judiciary. And if the Court exercises its prerogative to shift power in this way—by tightening up the Nondelegation Doctrine, by doing away with Chevron deference, or by otherwise reining in agencies’ actions—it looks more like the Court is the branch that gets a boost in power.

The D.C. Circuit this week rejected a challenge to the Secretary of State's authorization of a second bridge linking Detroit with Windsor, Ontario, as an impermissible delegation of authority by Congress (among other things).

The consent of Congress is hereby granted to the construction, maintenance, and operation of any bridge and approaches thereto, which will connect the United States with any foreign country . . . and to the collection of tolls for its use, so far as the United States has jurisdiction.

The plaintiff, which owns and operates the first bridge (the Ambassador Bridge), sued, arguing that the IBA violated the nondelegation doctrine, among other claims.

The D.C. Circuit this week rejected the plaintiff's nondelegation claim (along with the others). The court, quoting Zemel v. Rusk, said that there's a thumb on the scale against nondelegation challenges in the area of foreign affairs, because Congress "must of necessity paint with a brush broader than it customarily wields in domestic areas." It then compared the case to the congressional delegation in TOMAC v. Norton (D.C. Cir. 2006):

Applying these principles, this court has held that a delegation authorizing the Secretary of the Interior, who has a trust obligation with respect to Indians, "to acquire real property for the [Pokagon Indian] Band," was not unconstitutional because it was "cabined by 'intelligible principles' delineating both the area in and the purpose for which the land should be purchased. Here too, the Secretary's authority is limited by an "area"--navigable waters between the U.S. and Canada or Mexico--and a "purpose"--the construction of international bridges. Thus, the intelligible principle is that in view of the Secretary's mission relating to foreign affairs, the Secretary will review international bridge agreements for their potential impact on United States foreign policy.

The mixed ruling sends the plaintiffs' case against the CFPB and the recess appointment of Director Richard Cordray back to the district court for a ruling on the merits. We'll undoubtedly see this case back at the D.C. Circuit.

The State National Bank of Big Spring and a number of states brought the case, arguing four points. First, the Bank argued that the CFPB is unconstitutional, because, as an independent agency, it has to be headed by multiple members, not a single director (as it is). Moreover, the bank says that Congress's delegation to the CFPB violates the non-delegation doctrine.

Second, the Bank argues that President Obama appointed Director Cordray as a recess appointment during a three-day intra-session Senate recess, in violation of Noel Canning. (Cordray was subsequently confirmed by the Senate, but the Bank says his actions in the meantime are invalid.)

Third, the Bank claims that the Financial Stability Oversight Council, which monitors the stability of the U.S. financial system and responds to emerging threats and has statutory authority to designate certain "too big to fail" financial companies for additional regulation, violates the non-delegation doctrine and related separation-of-powers principles.

Finally, the states claim that Dodd-Frank's liquidation authority, which permits the government to liquidate failing financial companies that pose a risk to financial stability, violates the non-delegation doctrine and the Bankruptcy Clause's guarantee of uniform bankruptcy laws.

The court held that the bank, as an entity actually regulated by the CFPB, had standing. The court also said that the bank's claims were ripe, under Abbott Labs and Free Enterprise Fund (the PCAOB case).

But the court ruled that the Bank lacked standing to challenge the Council. In particular, it rejected the Bank's novel claim that the Bank was harmed because the Council designated one of the Bank's competitors as "too big to fail," thus giving the competitor a "reputational subsidy."

The court also held that the states lacked standing to challenge the government's liquidation authority. The states said that they invested pension funds in financial companies, that states are therefore creditors in possible future liquidations, that such liquidations could deprive the states of uniform treatment, and that as a result the states' current investments are worth less. The court said this was too speculative.

The Supreme Court today declined to review Coons v. Lew, the Ninth Circuit case holding that the plaintiffs' challenge to the ACA's Independent Payment Advisory Board was not ripe and rejecting the plaintiffs' challenges to the individual mandate. Today's non-action leaves the Ninth Circuit's ruling--and the IPAB and the individual mandate--in place (although it's not a ruling on the merits).

The plaintiffs in Coons challenged IPAB, the so-called "death panel," on the ground that it violated the non-delegation doctrine. IPAB is a 15-member administrative board that will monitor the growth of Medicare spending. If actual growth exceeds expected growth, IPAB will recommend a reduction in the growth rate to the "savings target" set by the Chief Actuary of the Centers for Medicare and Medicaid Services. IPAB's recommendations go to Congress, and Congress must either consider and vote on them, or pass superseding legislation. (If there's no superseding legislation, the Secretary must implement the recommendations as submitted.)

The Ninth Circuit ruled that the plaintiffs' challenge wasn't ripe. In particular, it said that Plaintiff Novack's claims that IPAB would reduce the Medicare payments he receives for treating his patients, and that IPAB would set in motion market displacements that would harm him financially, were speculative.

The Ninth Circuit also rejected the plaintiffs' claims that the individual mandate violated their substantive due process rights (to medical autonomy and informational privacy), and that the ACA did not preempt Arizona's constitutional provision that says that Arizonans can't be forced to buy insurance.

The Supreme Court's decision today is not a ruling on the merits of any of these claims--all of which were far-fetched from the get-go--but it leaves the Ninth Circuit ruling in place.

The decision says nothing about the likely direction the Court will take in King v. Burwell, the case testing whether the IRS exceeded its statutory authority by extending tax credits to individual health insurance purchasers on a federally facilitated exchange.

In what should be the final opinion in the extended saga of the quest for
anonymity by "Protect Marriage" members and supporters, the Ninth Circuit declared the case moot.

Recall that in Doe v. Reed,
decided by the United States Supreme Court in June 2010, the Court
rejected a facial challenge to the state of Washington's Public Records
Act (PRA), RCW 42.56
that governs the disclosure of public records including petitions
seeking a ballot initiatives. The ballot initiative at issue sought to
repeal the "everything but marriage" law for same-sex couples and was
spear-headed by the controversial Protect Marriage organization. The
John Doe plaintiffs challenged the public disclosure of their names as a violation of the First Amendment.

Subsequently, on remand from the United States Supreme Court, the district court's opinion
ordered disclosure of the names of those who signed an anti-same-sex
marriage petition in Washington state in accordance with the state's
usual processes. The Ninth Circuit denied the request for an emergency stay last year.

Now, the Ninth Circuit panel unanimously finds the case moot. The panel discussed an exception to the mootness doctrine under a two-prong
test: “(1) the challenged action is in its duration too short to
be fully litigated prior to cessation or expiration; and (2) there
is a reasonable expectation that the same complaining party
will be subject to the same action again.” The panel quickly found that prong one was not satisfied and therefore did not reach the second issue.

Concurring, Judge N.R. Smith disagreed on the mootness question, essentially holding that the matter was not moot because the court could attempt to at least narrow the dissemnination of the information. However, Judge Smith's conclusion on the merits was interwoven with the mootness arguments. He reasoned that Protect Marriage's "arguments regarding the merits of the burden on their First Amendment rights is incongruent with the mootness argument, because it discusses a burden caused by the government action of disclosing identities at all. Plaintiffs cannot have it
both ways."

While Protect Marriage may file a petition for writ of certiorari, it seems highly unlikely Doe v. reed will be returning to the Supreme Court again.

The Arkansas Supreme Court ruled on Friday in Hobbs v. Jones that the state's statutory method of execution violated state constitutional separation of powers. In particular, the court ruled that the general guidelines that the legislature provided to the Arkansas Department of Corrections, or ADC, to conduct intravenous lethal injections were too broad and constituted an unlawful delegation of legislative authority to the state executive agency.

The ruling leaves the state without a method of execution--at least for now. (The court also held that the offending sections of the act were nonseverable, ruling out a judicial excision or rewrite of the language and thus preserving the larger act.) The legislature could act relatively easily to amend the state's Method of Execution Act, or MEA, and to provide more detailed guidelines to the ADC within the bounds of the state's separation of powers principles and its nondelegation doctrine.

Arkansas is one of those states that has a specific separation-of-powers provision in its constitution. (The federal government does not have a specific separation-of-powers provision.) Article 4 reads:

Section 1. The powers of the government of the State of Arkansas shall be divided into three distinct departments, each of them to be confided to a separate body of magistracy, to-wit: Those which are legislative, to one, those which are executive, to another, and those which are judicial, to another.

Section 2. No person or collection of persons, being of one of these departments, shall exercise any power belonging to either of the others, except in the instances hereinafter expressly directed or permitted.

Under Article 4 and the state constitutional nondelegation doctrine, the Arkansas Supreme Court has held that the legislature may delegate to the executive, so long as it provides reasonable guidelines and appropriate standards. "A statute that, in effect, reposes an absolute, unregulated, and undefined discretion in an administrative agency bestows arbitrary power and is an unlawful delegation of legislative powers." Op. at 10.

The relevant portions of the MEA read as follows:

(a)(1) The sentence of death is to be carried out by intravenous lethal injection of one (1) or more chemicals, as determined in kind and amount in the discretion of the Director of the Department of Correction.

(2) The chemical or chemicals injected may include one (1) or more of the following substances:

(A) One (1) or more ultra-short-acting barbiturates

(B) One (1) or more chemical paralytic agents;

(C) Potassium chloride; or

(D) Any other chemical or chemicals, including but not limited to saline solution.

Ark. Code Ann. Sec. 5-4-617 (Supp. 2011).

The court ruled that these sections violated the state constitutional nondelegation doctrine, because they gave the ADC "absolute and exclusive discretion . . . to determine what chemicals are to be used." It said that (a)(2) did nothing to rein in that discretion, because by its plain terms--"may"--it is only permissive. In other words, the ADC could use chemicals that fall into these categories, or it could use any other chemicals it likes. Moreover, a later subsection, (a)(4), "gives complete discretion to the ADC to determine all policies and procedures to administer the sentence of death, including injection preparations and implementation." Op. at 14.

Justice Karen Baker, joined by Special Justice Bryon Freeland, dissented. Justice Baker argued that several other states have tolerated similar guidelines in the face of equally strict separation-of-powers clauses. In any event, she wrote that the guidelines in the MEA were detailed enough to withstand the challenge under the Arkansas Constitution, and that state and federal constitutional bans on cruel and unusual punishment provided an outside limit to what the ADC could do.

Judge James E. Boasberg (D.D.C.) rejected the plaintiff's claims that Congress improperly delegated authority to Amtrak to develop and enforce passanger railway standards in violation of due process and nondelegation principles and granted summary judgment to the government in Association of American Railroad v. Department of Transportation. The ruling affirms Amtrak's role in standard-making under the Passenger Railroad Investment and Improvement Act of 2008 and upholds Section 207 of that Act.

Under the Act, if the STB determines that Amtrak's failure to meet the standards is attributable to a rail carrier's failure to provide preference to Amtrak over freight transportation--that is, if a freight train makes an Amtrak train late--the STB may award damages against the host rail carrier. (Amtrak leases the rail lines that it uses from freight rail carriers.)

The AAR, representing its member freight rail carriers, sued the DOT, arguing that Section 207 violated due process, because it allowed a private, interested party, Amtrak, to regulate other industry participants. The AAR also argued that Section 207 effected an unconstitutional delegation of regulatory authority to a private entity.

The claims assumed that Amtrak was a private corporation--and the case thus turned on that assumption in the first instance. But Judge Boasberg, drawing on Lebron v. National Railroad Passenger Corporation (1995), concluded that Amtrak was a governmental entity, at least as to the due process claim. Here's what he wrote:

The two hallmarks of government control that the Lebron Court found decisive--namely, that Amtrak was created by special law for the furtherance of governmental objectives and that the government retained the authority to appoint a majority of directors--moreover, has not changed. Indeed, when Lebron was decided, the President appointed only six of Amtrak's nine directors; he now appoints eight of the nine. The government, moreover, retains more than 90% of Amtrak's stock, appropriates for Amtrak more than a billion dollars annually, and sets salary limits for Amtrak's employees. In addition, Amtrak is required to submit annual reports to Congress and the President.

Op. at 11-12. Because Amtrak is a government entity, Judge Boasberg concluded, Congress did not delegate rulemaking authority to a private entity in violation of due process.

As to the delegation claim, Judge Boasberg concluded that Amtrak's status as a private corporation or government entity didn't matter, because the government retained ultimate control over the standards (even if Amtrak was involved in the process).

While the AAR is correct that [Section 207] in a sense makes Amtrak the FRA's equal--as opposed to its subordinate--Amtrak cannot promulgate the Metrics and Standards without the agency's approval. . . .

Conditioning regulation on a private party's assent . . . is not constitutionally problematic. Indeed, the Supreme Court has reasoned that through such schemes the government "merely place[s] a restriction upon its own" ability to regulate.

In an opinion today, Wiley v. Scott, the Florida Supreme Court dealt a blow to Governor Rick Scott's attempt to - - - as the Governor's website describes it - - - fulfill a campaign practice by "signing executive orders to freeze job-killing regulations." In Executive Order 11-01 entitled "Suspending Rulemaking and Establishing the Office of Fiscal Accountability and Regulatory Reform" Scott established the office, known as OFARR, within the Executive Office of the Governor and directed the suspension of rulemaking except as approved by OFARR. After a lawsuit was brought but before today's opinion, Scott superceded EO 11-01 with Executive Order-11-72, in which he no longer used the word "suspend." The Florida Supreme Court deemed this change more apparent than real, labeling it "nothing more than a sleight of hand."

In Wiley, the Florida Supreme Court (pictured below) issued the extraordinary writ of quo warranto - - - a proper writ, according to a previous case, to "challenge the 'power and authority' of a constitutional officer, such as the Governor."

Having agreed to consider the case, the per curiam opinion, over two dissents, forumulated its "precise task" as being "to decide whether the Governor has overstepped his constitutional authority by issuing executive orders which contain certain limitations and suspensions upon agencies relating to their delegated legislative rulemaking authority and the requirements related thereto."

The Florida Supreme Court found that the Governor usurped the legislative role under the strong separation of powers principles in the Florida Constitution.

Rulemaking is a derivative of lawmaking. An agency is empowered to adopt rules if two requirements are satisfied. First, there must be a statutory grant of rulemaking authority, and second, there must be a specific law to be implemented.

After an extensive analysis, the court concluded that the Governor‘s executive orders, to the extent each suspends and terminates rulemaking by precluding notice publication and other compliance with the state administrative procedure act absent prior approval from OFARR, infringe upon the very process of rulemaking and encroach upon the Legislature‘s delegation of its rulemaking power. The court noted that whether "the Governor exceeded his authority derived from state law does not turn upon the number of times the encroachment occurred or whether petitioner was personally affected by it."

Two Florida Supreme Court Justices dissented, joining each other's opinions but writing separately. Justice Ricky Poston's dissent is longest, nearly as lengthy as the court's per curiam majority opinion. Poston relies on Article IV, section 1(a) of the Florida Constitution that provides that the "supreme executive power shall be vested in a governor" and argues that the Governor has broad powers. Polston also argues that because EO 11-01 has been superceded and OFARR is approving rulemaking, the Florida Supreme Court's opinion is merely advisory.

The opinion, however, relies upon state constitutional separation of powers provisions and principles to invalidate the acts of a controversial governor seeking to create a super-administrative agency within the Executive branch to control all other agencies. As such, it might be read with interest by other state supreme courts, and perhaps other governors.

ConLawProf's Steven Schwinn (pictured below) is participating in an online debate/discussion with Michael W. McConnell and Martin Flaherty as part of one of the Federalist Society online debates.

Steve Schwinn has this to say in his opening comments:

Let me start with a few comments about the unfortunate label "czar." These "czar" positions have proliferated in recent administrations and, as we know, have drawn heavy criticism most recently in the Obama administration. While some of these positions raise serious separation-of-powers and Appointments Clause issues, many, even most, do not. Importantly—and thankfully—their constitutionality does not turn on their label alone. Instead, it turns on their functions, their duties, and their processes of appointment.

Gene Healy, VP of the Cato Institute, argued earlier this week in the Washington Examiner that the EPA's initiative to regulate greenhouse gases from large facilities under the Clean Air Act reflects an Obama imperial presidency. (I posted on similar arguments back in April, when the EPA was just getting started on this, here.)

Healy confusingly seems to argue that the new rules are both contrary to the law and authorized by a too broad Clean Air Act. Healy:

The Obama team appears to believe it has the authority to implement comprehensive climate change regulation, Congress be damned. . . .

But existing law still leaves the executive branch enormous discretionary power--and thus a hammer to hold over Congress's head.

Healy, of course, is talking about the non-delegation doctrine (at least in the second sentence quoted here). But, as Healy acknowledges, the Supreme Court in 2007 in Massachusetts v. EPA ruled on the very provision of the Clean Air Act that authorizes the EPA to so regulate--and held that the EPA had to comply. That provision states that the EPA

shall by regulation prescribe . . . standards applicable to the emission of any air pollutant from any class . . . of new motor vehicles . . . which in [the EPA Administrator's] judgment cause[s], or contribute[s] to, air pollution . . . reasonably . . . anticipated to endanger public health or welfare.

42 U.S.C. Sec. 7521(a). The Supreme Court in Massachusetts v. EPAruled not only that the EPA had authority under the Clean Air Act to regulate greenhouse gases, but also that it had an obligation under the Act to make a judgment whether the gases contributed to global warming--a judgment that it refused to make. As Healy acknowledges, the Court did not rule that congressional delegation under the Clean Air Act was too broad--that the Act delegated lawmaking authority to the EPA in violation of the non-delegation doctrine. That argument was not even seriously in play in the case.

So the Obama administration's decision to commence regulation of greenhouse gases is fully consistent with its authority under the Clean Air Act and Massachusetts v. EPA. Healy acknowledges this.

But then he argues that the administration's move is "imperial" and, as support, throws in everything from Madison on separation-of-powers and liberty to the unitary executive theory. He concludes with this:

Will liberals who decried George W. Bush's unilateralism object to this staggering concentration of executive power? Don't hold your breath.

Healy is flat wrong in aligning the Obama EPA's decision to regulate greenhouse gases with the Bush administration excesses. Most notably, the EPA's decision, as Healy acknowledges, is perfectly consistent with the Clean Air Act. Regulation of greenhouse gases doesn't undermine congressional authorization under the Act; it realizes it. In contrast, so many of the Bush administration actions were contrary to law, relying only upon strained understandings of "inherent" Article II powers.

None of this has anything to do with the unitary executive theory--the original theory, or the much more expansive one promoted by the Bush administration. And the EPA certainly can't be accused of threatening liberty by disrespecting separation-of-powers principles. (If any branch could be so accused, by Healy's own reckoning it'd have to be Congress.)

In short, Healy's problem is not a constitutional one, and certainly not an imperial presidency one. Even if his premise--that the Clean Air Act delegates too much to the executive--were correct, it has nothing to do with his conclusion that "the imperial presidency comes in green, too."

Cass Sunstein (Harvard, Chicago) recently published a characteristically thoughtful and important piece, whose title asks a provocative and perhaps surprising question: Is OSHA Unconstitutional? The article appears in the most recent issue of the Va. Law Review; it's also posted on ssrn. I highly recommend this.

OSHA's constitutional problem is one of nondelegation: It lacks an "intelligible principle" to guide and limit agency discretion. Sunstein explains:

[The core provision of OSHA] defines an "occupational safety and health standard" as one that is "reasonably necessary or appropriate to provide safe or healthful employment or places of employment." When the Secretary of Labor issues regulations governing tractors, ladders, or electrical equipment, the only question to be asked is whether one or another standard is "reasonably necessary or appropriate."

Needless to say, this is a rather significant problem, given OSHA's sweep. But the nondelegation problem is only part of Sunstein's interest: He also seeks "to shed light on some pressing questions for both regulatory policy and administrative law." And these are indeed pressing; Sunstein:

Over 5000 Americans die each year in the workplace, and more than four million are injured or sickened by the conditions of their employment. Surely steps could be taken to reduce these deaths, injuries, and illnesses.

Sunstein explores three judicial solutions to these problems. First, and most aggressively, courts could rule OSHA unconstitutional. This solution would require Congress to reconsider OSHA--thus increasingly "democratic engagement with that question"--and "might produce a better, because more informed, occupational safety law." But the solution is also obviously dramatic and disruptive and, as Sunstein argues, unnecessary.

Second, and least aggressively, courts could set floors and ceilings for agency actions, building on current agency practices. This approach has the benefit of avoiding the constitutional question--the Avoidance Canon--but still gives the agency perhaps too much discretion.

Finally, courts could adopt a reasonable relation test between costs and benefits of regulations. Sunstein explains:

The agency should therefore be required to show, not that a regulation satisfies a strict cost-benefit test, but that the costs have a reasonable relationship to the benefits. If the monetized costs exceed the monetized benefits, the agency should be permitted to proceed so long as there is such a relationship between the two. . . . The agency could well decide that a rule would have desirable welfare effects even if the monetized benefits were lower than the monetized costs.

Sunstein argues that this third solution both avoids the constitutional issue and provides sufficient guidance to the agency. It also puts the OSHA issues in the sunshine. But, as he recognizes, the solution also leads to its own problems: OSHA doesn't obviously require this kind of loose cost-benefit analysis; and it's not clear why the courts should be able to save a statute from nondelegation problems when agencies themselves, under American Trucking, cannot. Sunstein argues that invocation of the Avoidance Canon resolves both problems: The courts may--even if not must--adopt the loose cost-benefit approach and thus validly interpret OSHA to avoid the nondelegation problem.

In addition to the constitutional analysis and argument, this article is an excellent springboard for discussions of institutional roles and competence, democratic engagement and legitimacy, and the appropriate role of cost-benefit analysis in agency decisionmaking. I highly recommend this.